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2014 (2) TMI 895 - ITAT HYDERABADStatus of the Assessee – Whether the assesseee is a resident or non-resident under section 6 of the Act – A.O. found that assessee was not regularly employed abroad, but worked as a consultant for a foreign company - Held that:- The argument of the CIT(A) that assessee did not leave India and stationed outside the country is not material, as nowhere the section specifies that assessee should leave India permanently so as to reside outside the country - Even visit outside India for a period of or periods accounting in all to 60 days/181 days (as the case may be) will satisfy the condition specified in section 6(1) - Since the plain meaning is very clear, the argument of the CIT(A) that assessee has not left India permanently has no meaning - as working out the period of stay in India, Assessing Officer worked in one way and the learned CIT(A) analyzed the period in a different way - Relying upon CBDT v. Aditya Birla [1987 (11) TMI 5 - SUPREME Court] employment does not mean salaried employment but also includes self-employed/professional work - assessee's earning for consultancy fees from foreign enterprise and visit abroad for rendering consultation can be considered for the purpose of examining whether assessee's is resident or not. The Assessing Officer has calculated the period of stay in one particular manner which the learned CIT(A) examined and determined in another manner by excluding the travel to two places which are not supported by evidence to consider for the purposes of employment - going abroad for the purpose of employment only means that the visit and stay abroad should not be for other purposes such as a tourist or for medical treatment or for studies or the like - assessee has visited number of places but in some of the stampings, the visa was granted as 'tourist visa' and some of them are 'pass through visa's. Unless assessee travels on business visa or for the purpose of business/consultation, the entire period of travel abroad cannot be considered as 'going abroad for the purpose of employment' - Since these details have not been examined by the Assessing Officer on the basis of the visas obtained - this aspect requires examination by the Assessing Officer, to verify whether the visits are for the purpose of employment or for the purpose of tour or for any other reason and only to the extent of visits for the purpose of employment can be considered, while determining status of assessee as per the provisions of law - thus, the matter should be re-examined by the Assessing Officer to establish the number of days assessee was outside the Country so as to consider whether he is the resident or non-resident as per the provisions of the Act – thus, the matter remitted back to the AO for fresh examination – Decided in favour of Assesse.
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